Legal Knowledge Center

By: Kuck Immigration ParntersThere are numerous changes that President Obama could do to "fix" some of the problems in our broken immigration system, without congressional intervention. These changes involve mostly policy change, not a lengthy regulatory fix.

The nightmare scenario for many immigrants dealing with our current immigration system is not always caused by the laws enacted by Congress (some are). Rather, these are problems either created by current administration policy, or by policies adopted by prior administrations. The President can change no laws. But, he can change regulations and policies. And, while our laws are indeed "broken" in many ways, the regulations and policies themselves are the source of many of the issues current plaguing our legal immigration system, and straining our resources as we combat undocumented immigration and deal with a non-functioning legal immigration system.

President Obama can do a LOT to change, modify, and update these regulations and policies. There are at least 14 things President Obama can do that would resolve a lot of immigration challenges, ranging from business immigration visas, deportation backlogs and family immigration, and priority for removal of undocumented immigrants. The saying is "go big, or go home." Here are some of the 14 changes President Obama can make to temporarily fix the current broken system. The good news, if he does it, is that MANY of these folks work in the restaurant industry.

Fixes for those who are eligible for a visa, but for being subject to the bars upon departure

“Parole-in-Place” for immediate relatives of USC who are beneficiaries of approved visa petitions. There is precedent for this remedy as the administration already uses parole-in-place for Cuban entrants and family members of former and current US military personnel. Section 212(d)(5) of the INA provides the Attorney General (now DHS), the authority to parole into the U.S. temporarily under such conditions as he may prescribe on a case-by case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S. Section 235(a)(1) of the INA sets out that aliens present in the U.S. who have not been admitted are treated as applicants for admission to the U.S. Thus, these aliens can lawfully be paroled.

The administration can deem extreme hardship as in special rule cancellation (there is historical precedent for this in special rule cancellation for NACARA). In order to be eligible for a waiver of the unlawful presence bars under § 212(a)(9) of the INA, a foreign national subject to those bars must demonstrate that a qualifying relative will suffer extreme hardship if he/she is not allowed to return to the U.S. This same requirement existed under the former § 244(a) of the INA (suspension of deportation). In order to facilitate the adjudication of suspension applications in the past under NACARA, the administration, at the time, deemed the existence of extreme hardship for those with qualifying relatives. See Limited Presumption of Extreme Hardship under Section 203 of NACARA, HQCOU 90/16.11-C, Feb. 12, 1999, by Paul Virtue. There are times that the administration has elevated the hardship requirement for a waiver. For example, though the statute requires a foreign national to demonstrate extreme hardship when applying for a waiver under § 212(h) of the INA when convicted of certain criminal acts, the administration elevated the requirement to exceptional and extremely unusual hardship for those convicted of violent or dangerous crimes. Under 8 C.F.R. § 1212.7(d), the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under INA § 212(h). 8 C.F.R. § 1212.7(d). Matter of Jean, 23 I&N Dec. 373, 383 (BIA 2002).

The administration can enable those granted TPS to adjust status to lawful residence if otherwise qualified through an approved visa petition. Currently, but for those living within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit, the administration will not allow a foreign national granted TPS to adjust status, finding that TPS is not a lawful status from which one can adjust status. The 6th Circuit, in sound reasoning, found that TPS is a lawful status from which foreign nationals can adjust status. This decision should be adopted nationally.

The administration can expand the 601A waiver process stateside to all foreign nationals who are the beneficiaries of approved visa petitions. This administration currently allows beneficiaries of approved immediate relative petitions, who require unlawful presence waivers, to apply for those waivers while physically present in the U.S. Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and who are eligible for waivers have to apply for waivers after being denied visas abroad. These waivers take many months to adjudicate. Fearful of not being granted the waivers, these foreign nationals do not proceed abroad, even though many of these waivers would be favorably adjudicated. By moving the entire process stateside, many more foreign nationals would pursue the currently available immigrant visa process.

The administration could also include the ability to process waivers of deportation (I-212), or other waivers, along with unlawful presence waivers while the applicants are in the US. As many aliens subject the unlawful presence bar also require deportation waivers or other waivers, they are not eligible to take advantage of the I-601A waiver process, which has effectively rendered the existing policy useless for a large segment of the immigrant population.

The administration can relax interpretations of those deemed unlawfully present under § 212(a)(9) of the INA. The administration has never enacted any regulations on unlawful presence. A foreign national who is in a period of stay authorized by the Attorney General is not unlawfully present. The administration has latitude in determining what foreign nationals are present in a period of stay authorized by the Attorney General. Moreover, section 212(a)(9)(B)(iii) of the INA provides exceptions for period for unlawful presence, i.e., for minors, those that have filed for asylum etc. Section 212(a)(9)(B)(iv) provides for tolling of unlawful presence. These exceptions and tolling have only been applied to the 10 year bar to admissibility. The administration can apply these to all periods of unlawful presence, including the permanent bar to admission under § 212(a)(9)(c).

Section 245(i) of the INA provides that certain foreign nationals and their spouses and children who commenced the residence process on or before April 30, 2001 and were physically present on December 20, 2000 can seek residence in the U.S. upon payment of a fine of $1000, if otherwise eligible for residence. At one time, the administration interpreted the relatives covered by section 245(i) broadly (i.e. as covering after-acquired spouses). More recently, the Board of Immigration Appeals found that after -acquired spouses of beneficiaries covered by §245(i) would not benefit from this provisions. This is a reversal in policy. National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005), allows the administration to rethink prior interpretations of law. The administration should use the Brand X decision to broaden its interpretation of 245(i),.

The administration can use greater prosecutorial discretion (stop trying to deport immediate relatives). The administration should formalize a policy of not putting certain foreign nationals in removal proceedings and target border enforcement.

Administrative Fixes for lack of family and employment immigrant visas

There is no legal support in the Immigration Act for charging worldwide visa quotas against all immigrating family members, as opposed to the legally support use of one (1) visa as per family unit. This would essentially solve most family and employment quota backlogs.

Allow U.S. companies to attract global talent and compete with E and L companies and deal with severe H-1B shortage

The administration can grant employment authorization for spouses of foreign nationals allowed to work in the U.S. on H1B, TN, E3 and H1B1, O and P visas. This will lessen the demand on the H1B professional visa. The demand is so great for the H-1B professional visa that the visas are exhausted the first day they are available. In fact, this year, a foreign national applicant for an H-1B visa, with a U.S. bachelor’s degree, had about a 43% chance of getting selected for the H-1B. The administration has already granted work permission to spouses of L and E visa holders. It is a logical extension for the administration to extend work permission to spouses of other visas.

The administration can grant longer periods of optional practical training for students. The administration already extended the practical training granted to STEM majors in U.S. universities from 12 months to 29 months, as long as the STEM’s employer participates in E-verify. Why not extend this to all foreign graduates of U.S. universities? This would help alleviate the H-1B crisis and encourage more employers to use E-verify.

Let’s see if the President will “go big” on these immigration fixes, or if he simply “go home.”